Row Over Riparian Rights in Wisconsin Reviewed by U.S. Supreme Court

March 31, 2017 by Gregory M. Miller

An eastern Wisconsin family’s drawn-out attempt to sell their property has now made its way to the United States Supreme Court in the case Murr v. Wisconsin. The Murrs claim that St. Croix County is intruding on their private property rights under the Takings Clause of the Fifth Amendment by making it impossible for them to sell one of their riverfront lots. The County argues that the Murrs were aware of the restrictions when they bought the property.

The Murrs’ parents purchased the lots separately. In 1960, they purchased Lot F of the existing subdivision and built a cabin thereon near the St. Croix River. In 1963, they purchased the adjacent lot, Lot E, with the intention of developing it separately from Lot F or potentially selling it to a third party. The Murr parents then transferred the lots to their children in separate transactions; Lot F in 1994 followed by Lot E in 1995.

When the transfer in 1995 occurred, it brought the lots under common ownership and resulted in a merger of the two lots under St. Croix County, Wis. Code of Ordinances, Land Use & Dev., Subch. III.V, Lower St. Croix Riverway Overlay Dist. § 17.36I.4.a. (July 1, 2007, which has been in place since the mid-1970s. This ordinance prohibits the individual development or sale of adjacent, substandard lots under common ownership unless an individual lot includes at least one acre of net project area. The intended purpose of the law is to protect the shoreline of the St. Croix, a federally protected river.

After repeated flooding, the Murrs decided to sell Lot E as a buildable lot and use the resulting funds to flood proof the cabin on Lot F. The Murrs believe the lot is worth $400,000. The Murrs sought a variance to separately use or sell their two adjacent lots. The St. Croix County Board of Adjustment denied the application. The Murrs filed a complaint alleging that the ordinance deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court granted summary judgment to the County and State. Accordingly, the Wisconsin court of appeals upheld the circuit court stating that there was no taking because the entirety of the Murrs’ property could be used for residential purposes.

The U.S. Supreme Court heard the oral arguments for the case on March 20, 2017. Chief Justice John Roberts stated that it was a “little quirky” that the Murrs weren’t allowed to treat the parcels of land as two separate parcels. He noted that it seem[ed] unfair that if the Murrs had acquired the properties under separate names, they would not be in this situation. Other Justices noted that the Murrs knew what they were buying into. The High Court’s decision in this case will establish just how far the government can go in restricting the rights of private property owners.